This blog, Criminal HIV Transmission, a collection of published news stories, opinion, and resources about so-called 'HIV crimes', has now been incorporated into the new HIV Justice Network website, and will not be updated as of November 15th 2012.
For more information about the HIV Justice Network, please visit http://www.hivjustice.net

At the Court of Criminal Appeal in Edinburgh, Lord Osborne, sitting with Lord Kingarth, ruled that the sentence had been excessive.

Mr Deveraux continues to make tabloid headlines. On Sunday, Britain's largest circulation newspaper, the News of the World reported

HIV monster enjoys day out of jail. HIV monster Mark Devereaux was out in the sunshine this week — on his first jaunt from jail to have treatment for his disease at the taxpayers' expense. The fiend, who infected one lover and slept with three other women knowing he had HIV, was whisked out of Peterhead nick on Thursday for a trip to Aberdeen Royal Infirmary.

A second article that interviews his 'victim' provides more details here.

The appeal judges decided on Tuesday that Devereaux should have been jailed for 12 years but his early admission had earned him a discount of a third.

There has been much media response, ranging from the sensationistically stigmatising (Scottish Sun) to the balanced and liberal (BBC via THT).

However, my favourite response comes from a blog posting by a Scottish "socio-legal researcher [with] a particular interest in the diffusion of social knowledges and how they come to exercise legal force." I am posting below, with their permission, the entire posting from the Lallands Peat Worrier blog entitled The scandal of Scottish HIV exposure prosecutions....

When it was reported that Mark Devereaux had plead guilty to four charges of culpable and reckless conduct in the High Court in Dumbarton, I wrote about some of the implications and justification for Scots criminalisation of HIV transmission. Let’s be clear on our facts. Devereaux did not tell four of his sexual partners that he had been diagnosed with the Human Immunodeficiency Virus. Reportedly, he had been in long term relationships with two of these women. One of the women with whom Devereaux had an extended relationship was herself diagnosed as HIV positive as a result of their unprotected sex. The three other women were not. Yet four charges were pressed against Devereaux for culpable and reckless conduct. The three for mere exposure, as opposed to reckless transmission of HIV despite personal knowledge of that status, are the first such prosecutions in the United Kingdom. He has now been sentenced.

My first post on this subject asked a number of questions, explored a number of the issues. How do we construct harm? How do we select what harms are punishable by our criminal law? By contrast, this post makes a more specific argument. I believe that despite his strongly unattractive conduct, his lies, the emotional distress he has certainly caused a number of people – that it is absurd to prosecute a man for “exposing others” – and notice how passively this constructs female sexuality – to HIV. On transmission, my mind is less made up. However, as I commented earlier, the present legal position means that it is at least theoretically illegal for those who are HIV positive to engage in procreative sex in Scotland. This is scandalous. Finally, partly informed by the foregoing, sentencing the miserable Mark Devereaux to 10 years in prison is palpably excessive. Through his legal agents, I hope he ventures to lodge an appeal against the sentence handed down by the Court this month.

The Scottish legal magazine the Firm have Lord Pentland’s full sentencing statement of the 25th of February. They don’t begin well, confirming that “A man has been sentenced to ten years in jail after embarking on a series of sexual relations whilst in the knowledge that sexual contact would pass on the HIV infection to his partners” (my emphasis). This, as the facts of the case bear out, is total bunkum. Devereaux pled guilty to four charges of culpable and reckless conduct – three of which were prosecutions for “exposure”, while only one woman is now HIV positive as a result of Devereaux’s actions. We’re dealing with risk and potentialities here, not unavoidable necessities implied by the Firm’s would. Here is what Lord Pentland had to say:

“Mark Richard Devereaux, you have pled guilty to four charges of culpable and reckless conduct arising from a prolonged and sustained course of utterly irresponsible, dangerous and selfish sexual behaviour on your part. In short, knowing full well for many years that you had been infected with the Human Immunodeficiency Virus, you repeatedly and regularly had sexual intercourse with a number of women, without taking any steps to protect them against the risk that you would thereby transmit the virus to them. You were well aware from the medical advice given to you that you were at risk of infecting any sexual partner if you had unprotected intercourse, but you chose not to inform any of your partners that you had the virus and you chose not to use a condom or take any precautions.

You were engaged in long-term relationships with two of your victims and you infected one of these women with the virus. She decided to have an abortion when she discovered that she was infected. When the other of your long-term partners found your medication at one stage, you denied that it was for HIV and continued to have unprotected sex with her.

Those of your victims whom you did not infect were nonetheless each exposed to a considerable risk of contracting the virus. It seems to me that you callously and cruelly betrayed the trust placed in you by each of your partners and that you deceived them for your own self-centred reasons. Each of your victims has been devastated by these events. The person whom you infected will have to live for the remainder of her life with the knowledge that she now has the virus. She will require to have regular medical treatment and to take regular medication. She may suffer further consequences and must live with the uncertainty of that hanging over her. The charge in relation to her includes the serious aggravation that her life has been endangered. The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them.

I have taken full account of all that has been said on your behalf by Mr. Renucci and of the contents of the Social Enquiry Report. I accept that you have a good employment record and that you have no analogous criminal convictions. I am willing to accept, to some degree, that you pushed the reality of matters to the back of your mind, but this cannot in any sense excuse the highly irresponsible nature of your behaviour.

In my opinion, your persistent failure to be open about your condition and your prolonged insistence on having unprotected sex with a number of women over a period of several years shows a gross level of recklessness on your part and a total indifference to the welfare of those with whom you had intimate relations. In these circumstances, a substantial custodial sentence must be imposed. Had it not been for your guilty plea tendered at an early stage, I would have sentenced you to a term of thirteen years imprisonment.

You are entitled, as a matter of law, to a discount to reflect the fact that you pled guilty. In selecting the discount, I note that you made full admissions to the police when they interviewed you in July 2009. It is accordingly difficult to see that you ever had any possible defence to the charges. I accept, however, for the reasons set out by your counsel that your early admission of guilt had some utilitarian value. In the whole circumstances, I shall exercise the discretion conferred on me by reducing the sentence to one of ten years imprisonment. This is a cumulative sentence imposed in respect of all four charges. I shall backdate that sentence to 19 January 2010 since when you have been in custody in relation to this matter. I have already certified you for the purposes of the Sexual Offences Act 2003. The Clerk of Court will inform you in writing of the period during which the notification requirements will apply.”

Flatly, I’m appalled that the Court considers 13 years appropriate punishment for the charges as libelled, despite the reduced quantum for formal contrition and admission of fault. Moreover, a single ‘cumulative’ sentence is a suspicious beast – how does it break down? One year a piece for the exposure cases, ten for transmission? Giovanni Mola, whose case I discussed in my previous remarks, received nine years imprisonment for reckless and culpable transmission. He pled not guilty, however, and thus received no reduction for tendering a guilty plea. Given that comparator, it is difficult to tease out exactly how the case broke down in Lord Pentland’s mind. It is fair to argue that the exposure offences, which I’m particularly concerned with here, were tabulated to at least one year apiece.

Which brings us on to the nature of the conduct justifying such an imposition of penalty. Detective Inspector Martin Dunn, of Grampian Police, is quoted elsewhere remarking (fairly in the first sentence) that: “Devereaux acted with almost unbelievable irresponsibility and recklessness.” The Inspectors then embroiders this remark with another: “He has blighted the lives of all the women he had relationships with since being diagnosed”. I fail to see how this is true with respect to the three cases of culpable and reckless exposure. Like a tedious bore with his cyclically recurring ‘cancer-scare’ story, who relates how the queer, painless lump that put his world all out of joint and prompted melancholy reflections on his own morality was merely a benign cyst - yet still petitions for our interest and confirmation of his victim status. I don’t mean to imply that this whole process can have been easy for any of the women by any measure. I’m sure much upset and alarm resulted when Devereaux’s sexual partners realised that their past conduct may have had consequences which are unknown and challenging. But don’t let’s forget – only one of these women have any lasting physical repercussions. So why talk about them as if all four cases were fundamentally the same? Why the justifying innuendo, the implausible claims to permanent injury?“The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them”, said Lord Pentland. True enough, I’m sure. But hardly the stuff that state prosecutions are justified by, is it?

How many individuals sexually betray their fidelity to a partner – and generate analogous care and stress? How many parents inflict their neuroses on their guileless children to their permanent psychological injury and the disfigurement of their life’s potential? How many employers callously and with malice a’forethought, make their workforces redundant but luxuriate in inflated bonuses, to the workers’ significant anxiety, distress and manifest suffering? The point about all of this is not to collapse any of these claims to have suffered, to have been the victim of another. Rather, they highlight the crucial point – the criminal law doesn’t exist to salve hurt feelings or correct all the small and major injustices which we all inflict on one another. Its causes of action are generally and ought to be far narrower than the manifold capacity of humankind to err and sin. There but by the Grace of God, you might argue, for these three women, left unharmed. No thanks to Devereaux, certainly, but smiling Fortune and a bit of luck. Yet this isn’t just about one man, his lies, his breaches of trust, his scurrying and contemptible character. We operate within an ideology of legal rationality, where Devereaux the individual is separable from Devereaux the legal category, the formal authority, the basis for legal reasoning in the future. This second Devereaux concerns me acutely – the prosecution and punishment of HIV exposure and the criminalisation of the sex lives a section of the community should concern us all. Particularly with the tabloids commentating at a shrill fever pitch, full of passionate intensity.

At the Court of Criminal Appeal in Edinburgh, Lord Osborne, sitting with Lord Kingarth, ruled that the sentence had been excessive.

Mr Deveraux continues to make tabloid headlines. On Sunday, Britain's largest circulation newspaper, the News of the World reported

HIV monster enjoys day out of jail. HIV monster Mark Devereaux was out in the sunshine this week — on his first jaunt from jail to have treatment for his disease at the taxpayers' expense. The fiend, who infected one lover and slept with three other women knowing he had HIV, was whisked out of Peterhead nick on Thursday for a trip to Aberdeen Royal Infirmary.

A second article that interviews his 'victim' provides more details here.

The appeal judges decided on Tuesday that Devereaux should have been jailed for 12 years but his early admission had earned him a discount of a third.

There has been much media response, ranging from the sensationistically stigmatising (Scottish Sun) to the balanced and liberal (BBC via THT).

However, my favourite response comes from a blog posting by a Scottish "socio-legal researcher [with] a particular interest in the diffusion of social knowledges and how they come to exercise legal force." I am posting below, with their permission, the entire posting from the Lallands Peat Worrier blog entitled The scandal of Scottish HIV exposure prosecutions....

When it was reported that Mark Devereaux had plead guilty to four charges of culpable and reckless conduct in the High Court in Dumbarton, I wrote about some of the implications and justification for Scots criminalisation of HIV transmission. Let’s be clear on our facts. Devereaux did not tell four of his sexual partners that he had been diagnosed with the Human Immunodeficiency Virus. Reportedly, he had been in long term relationships with two of these women. One of the women with whom Devereaux had an extended relationship was herself diagnosed as HIV positive as a result of their unprotected sex. The three other women were not. Yet four charges were pressed against Devereaux for culpable and reckless conduct. The three for mere exposure, as opposed to reckless transmission of HIV despite personal knowledge of that status, are the first such prosecutions in the United Kingdom. He has now been sentenced.

My first post on this subject asked a number of questions, explored a number of the issues. How do we construct harm? How do we select what harms are punishable by our criminal law? By contrast, this post makes a more specific argument. I believe that despite his strongly unattractive conduct, his lies, the emotional distress he has certainly caused a number of people – that it is absurd to prosecute a man for “exposing others” – and notice how passively this constructs female sexuality – to HIV. On transmission, my mind is less made up. However, as I commented earlier, the present legal position means that it is at least theoretically illegal for those who are HIV positive to engage in procreative sex in Scotland. This is scandalous. Finally, partly informed by the foregoing, sentencing the miserable Mark Devereaux to 10 years in prison is palpably excessive. Through his legal agents, I hope he ventures to lodge an appeal against the sentence handed down by the Court this month.

The Scottish legal magazine the Firm have Lord Pentland’s full sentencing statement of the 25th of February. They don’t begin well, confirming that “A man has been sentenced to ten years in jail after embarking on a series of sexual relations whilst in the knowledge that sexual contact would pass on the HIV infection to his partners” (my emphasis). This, as the facts of the case bear out, is total bunkum. Devereaux pled guilty to four charges of culpable and reckless conduct – three of which were prosecutions for “exposure”, while only one woman is now HIV positive as a result of Devereaux’s actions. We’re dealing with risk and potentialities here, not unavoidable necessities implied by the Firm’s would. Here is what Lord Pentland had to say:

“Mark Richard Devereaux, you have pled guilty to four charges of culpable and reckless conduct arising from a prolonged and sustained course of utterly irresponsible, dangerous and selfish sexual behaviour on your part. In short, knowing full well for many years that you had been infected with the Human Immunodeficiency Virus, you repeatedly and regularly had sexual intercourse with a number of women, without taking any steps to protect them against the risk that you would thereby transmit the virus to them. You were well aware from the medical advice given to you that you were at risk of infecting any sexual partner if you had unprotected intercourse, but you chose not to inform any of your partners that you had the virus and you chose not to use a condom or take any precautions.

You were engaged in long-term relationships with two of your victims and you infected one of these women with the virus. She decided to have an abortion when she discovered that she was infected. When the other of your long-term partners found your medication at one stage, you denied that it was for HIV and continued to have unprotected sex with her.

Those of your victims whom you did not infect were nonetheless each exposed to a considerable risk of contracting the virus. It seems to me that you callously and cruelly betrayed the trust placed in you by each of your partners and that you deceived them for your own self-centred reasons. Each of your victims has been devastated by these events. The person whom you infected will have to live for the remainder of her life with the knowledge that she now has the virus. She will require to have regular medical treatment and to take regular medication. She may suffer further consequences and must live with the uncertainty of that hanging over her. The charge in relation to her includes the serious aggravation that her life has been endangered. The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them.

I have taken full account of all that has been said on your behalf by Mr. Renucci and of the contents of the Social Enquiry Report. I accept that you have a good employment record and that you have no analogous criminal convictions. I am willing to accept, to some degree, that you pushed the reality of matters to the back of your mind, but this cannot in any sense excuse the highly irresponsible nature of your behaviour.

In my opinion, your persistent failure to be open about your condition and your prolonged insistence on having unprotected sex with a number of women over a period of several years shows a gross level of recklessness on your part and a total indifference to the welfare of those with whom you had intimate relations. In these circumstances, a substantial custodial sentence must be imposed. Had it not been for your guilty plea tendered at an early stage, I would have sentenced you to a term of thirteen years imprisonment.

You are entitled, as a matter of law, to a discount to reflect the fact that you pled guilty. In selecting the discount, I note that you made full admissions to the police when they interviewed you in July 2009. It is accordingly difficult to see that you ever had any possible defence to the charges. I accept, however, for the reasons set out by your counsel that your early admission of guilt had some utilitarian value. In the whole circumstances, I shall exercise the discretion conferred on me by reducing the sentence to one of ten years imprisonment. This is a cumulative sentence imposed in respect of all four charges. I shall backdate that sentence to 19 January 2010 since when you have been in custody in relation to this matter. I have already certified you for the purposes of the Sexual Offences Act 2003. The Clerk of Court will inform you in writing of the period during which the notification requirements will apply.”

Flatly, I’m appalled that the Court considers 13 years appropriate punishment for the charges as libelled, despite the reduced quantum for formal contrition and admission of fault. Moreover, a single ‘cumulative’ sentence is a suspicious beast – how does it break down? One year a piece for the exposure cases, ten for transmission? Giovanni Mola, whose case I discussed in my previous remarks, received nine years imprisonment for reckless and culpable transmission. He pled not guilty, however, and thus received no reduction for tendering a guilty plea. Given that comparator, it is difficult to tease out exactly how the case broke down in Lord Pentland’s mind. It is fair to argue that the exposure offences, which I’m particularly concerned with here, were tabulated to at least one year apiece.

Which brings us on to the nature of the conduct justifying such an imposition of penalty. Detective Inspector Martin Dunn, of Grampian Police, is quoted elsewhere remarking (fairly in the first sentence) that: “Devereaux acted with almost unbelievable irresponsibility and recklessness.” The Inspectors then embroiders this remark with another: “He has blighted the lives of all the women he had relationships with since being diagnosed”. I fail to see how this is true with respect to the three cases of culpable and reckless exposure. Like a tedious bore with his cyclically recurring ‘cancer-scare’ story, who relates how the queer, painless lump that put his world all out of joint and prompted melancholy reflections on his own morality was merely a benign cyst - yet still petitions for our interest and confirmation of his victim status. I don’t mean to imply that this whole process can have been easy for any of the women by any measure. I’m sure much upset and alarm resulted when Devereaux’s sexual partners realised that their past conduct may have had consequences which are unknown and challenging. But don’t let’s forget – only one of these women have any lasting physical repercussions. So why talk about them as if all four cases were fundamentally the same? Why the justifying innuendo, the implausible claims to permanent injury?“The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them”, said Lord Pentland. True enough, I’m sure. But hardly the stuff that state prosecutions are justified by, is it?

How many individuals sexually betray their fidelity to a partner – and generate analogous care and stress? How many parents inflict their neuroses on their guileless children to their permanent psychological injury and the disfigurement of their life’s potential? How many employers callously and with malice a’forethought, make their workforces redundant but luxuriate in inflated bonuses, to the workers’ significant anxiety, distress and manifest suffering? The point about all of this is not to collapse any of these claims to have suffered, to have been the victim of another. Rather, they highlight the crucial point – the criminal law doesn’t exist to salve hurt feelings or correct all the small and major injustices which we all inflict on one another. Its causes of action are generally and ought to be far narrower than the manifold capacity of humankind to err and sin. There but by the Grace of God, you might argue, for these three women, left unharmed. No thanks to Devereaux, certainly, but smiling Fortune and a bit of luck. Yet this isn’t just about one man, his lies, his breaches of trust, his scurrying and contemptible character. We operate within an ideology of legal rationality, where Devereaux the individual is separable from Devereaux the legal category, the formal authority, the basis for legal reasoning in the future. This second Devereaux concerns me acutely – the prosecution and punishment of HIV exposure and the criminalisation of the sex lives a section of the community should concern us all. Particularly with the tabloids commentating at a shrill fever pitch, full of passionate intensity.

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About this blog

This blog is now incorporated into new HIV Justice Network website which is intended to be a global information and advocacy hub for individuals and organisations working to end the inappropriate use of the criminal law to regulate and punish people living with HIV. There you will find the latest news and cases, searchable by date, country, and case type, plus all kinds of advocacy resources (including video). The information on the website is also classified by 25 topics, under six headings: Advocacy; Alternatives; Impact; Law Enforcement; Laws and Policies; and Science.

The new HIV Justice Network website incorporates all the posts from my blog, Criminal HIV Transmission, which I began in 2007. Little did I know at the time that it would become an important global resource, filling a much-needed gap by capturing what is happening in real time. It was only when I attended AIDS 2008 in Mexico City, and discovered how many people knew of me and my work, that I realised how useful a resource it had become for advocates, researchers, lawyers and others from all over the world.

Knowing that the blog served as an international information and advocacy hub placed enormous pressure on my time and personal resources. Until the beginning of 2012, the blog and its associated advocacy work received no funding – save the few wonderful individuals who donated via Paypal and a small grant from IPPF (thank you!). So I’m very grateful to The Monument Trust for its generous support which has allowed me to sustain, develop and expand the blog into the HIV Justice Network. I’d also like to thank Kieran McCann and Thomas Paterson from NAM, who designed and developed the site, as well as NAM’s Executive Director, Caspar Thompson, for his support and guidance.

HIV and the Criminal Law

This international resource, HIV and the Criminal Law, which I wrote and edited for NAM, is available as an A5 book and at www.aidsmap.com/law. To order your copy visit www.aidsmap.com/law, or contact NAM at +44 (0)20 7840 0050, email: info@nam.org.uk If you are based in a low or lower middle income country, as defined by the World Bank, and would like a free copy of this book please contact NAM.

Why Criminalisation Matters

Click on the image above to listen to Sean Strub, Catherine Hanssens, Vanessa Johnson and I discuss why HIV criminalisation in the US is a major issue for public health and human rights. The panel took place in February 2011 as part of the eQuality Thinking virtual convention.

Funders Concerned About AIDS

I delivered the keynote address, 'Combating HIV Criminalization at Home & Abroad', to the annual gathering of US-based HIV funders in Washington DC in December 2010. Video of my presentation is now available. Visit the FCAA website to watch it online.

Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward

This meeting by and for advocates against the criminalisation of HIV nondisclosure, exposure and non-intentional transmission was held on July 18th 2010 prior to AIDS2010 in Vienna and co-organised by the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV and NAM.

This poster presented to the XVIII International AIDS Conference in Vienna in July 2010, highlights how the US criminal justice system routinely breaches international human rights standards [click on the image to download an interactive pdf file]